NO. 90-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WESLEY PAUL JOHNSON,
Defendant and Appellant,
and
ANN JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth ~udicialDistrict,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. irk ~ecarri, Public Defender, Missoula, Montana;
Margaret L. Borg, Public Defender, Missoula,
Montana ; Marcia Jacobsen, Public Defender,
Missoula, Montana.
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Micheal S. Wellenstein, Assistant Attorney General,
Helena, Montana; Robert L. Deschamps, County
, Missoula, Montana.
k c .;S -- r$&-Jl Submitted on briefs: October 10, 1991
a
Clerk
Chief Justice b. A. Turnage delivered the Opinion of the Court.
Wesley Paul Johnson and Ann Johnson (collectively referred to
as Defendants) appeal their convictions for criminal mischief
following a jury trial in the Fourth Judicial District, Missoula
County. We reverse and remand. Defendants present the following
issues:
1. Did the District Court err when it denied Defendants*
motions to exclude evidence of other acts?
2. Did the District Court err when it denied Defendants*
motions for a directed verdict and for a new trial?
On March 11, 1988, Wesley Paul Johnson and his mother, Ann
Johnson, were individually charged by information with arson, or in
the alternative, criminal mischief, in connection with an August
21, 1987 fire that destroyed a mobile home at 2323 Suzanne Court in
Missoula, Montana. Both pled not guilty to these charges on March
31, 1988. On April 14, 1988, the State moved to consolidate the
Defendants' cases; the District Court granted this motion on May
On August 9, 1988, the State filed a notice of intent to rely
on the following other crimes evidence:
Late 1970's - Kalispell, Montana, Highway 2, duplex fire
in which the entire building burned where Defendant,
Wesley Johnson, was residing.
January 23, 1980 - Billings, Montana, 3110 Old Hardin
Road, fire occurred at 0748 in the living room of mobile
home owned and occupied by Defendant, Wesley Johnson.
The local fire department lists the cause as a cigarette
discarded in an upholstered sofa.
August 9, 1980, Billings, Montana, 3925 Bobolink, fire
occurred at 2331 in the bedroom of a single family
residence occupied by Defendant, Ann Johnson. The cause
was listed as undetermined.
December 3, 1984 - Billings, Montana, 5046 Danford Drive,
fire occurred in a vacant mobile home. The mobile home
was owned by Defendant, Wesley Johnson. The investiga-
tion revealed that a petroleum product was used in one of
the bedrooms in an attempt to spread the fire.
July 29, 1985 - Missoula, Montana, 2439 1/2 MacDonald,
fire occurred at 1823 in a garage used as an automotive
repair shop operated by Wes Johnson. The fire was
attributed to sparks from [an] acetylene torch igniting
a box of rags.
March 30, 1987 - Quincy, Washington, Lazy Acres Mobile
Home Park, fire occurred at 2255 in a mobile home owned
by Defendant, Wesley Johnson, and occupied by Ann
Johnson. The fire was attributed to a cigarette being
dropped into a box of clothes that Defendant, Ann
Johnson, had been folding.
August 21, 1987 - Missoula, Montana, 2325 [sic] Suzanne
Court fire occurred at 0259 in a mobile home owned by
Defendant, Wesley Johnson, and occupied by Defendant, Ann
Johnson. The fire was originated near a stack of folded
clothes on the floor and on a love seat. The occupant
Defendant, Ann Johnson, had been drinking coffee and
smoking while folding clothes.
Defendants filed a motion in limine objecting to the introduc-
tion of these prior fires. On October 26, 1988, the District Court
denied Defendants' motion in limine, and allowed the State to
introduce into evidence all but the late 1970's fire in Kalispell,
Montana.
The jury trial commenced on December 5, 1989. As conceded in
the State's brief, no direct evidence was presented at trial that
linked Defendants with intentionally causing the August 21, 1987
mobile home fire. After three days of trial, Defendants moved for
a directed verdict on the charges against them. The District Court
granted Defendants' motions for directed verdict on the arson
charges, but denied their motions on the criminal mischief charges.
The jury later found Defendants guilty of criminal mischief.
On April 25, 1990, the District Court sentenced both Defen-
dants to five years imprisonment with all five years suspended.
From these convictions, Defendants appeal.
1. Did the District Court err when it denied Defendants'
motions to exclude evidence of other acts?
The District Court allowed the admittance of five prior fires
as other crimes evidence. Defendants were never charged with any
wrongdoing regarding these fires, and no evidence exists in the
record that proves that Defendants intentionally caused them.
Defendants argue that the prejudicial value of these prior fires
outweighed its probative value as this evidence left the jury with
the impression that Defendants had on five past occasions caused
fires and escaped punishment. Defendants further argue that "the
mere occurrence of fires . . . do[es] not establish a common method
of operation in committing the crime charged."
We hold that the admittance of these prior fires unfairly
prejudiced the Defendants as no evidence exists that links
Defendants with intentionally causing these prior fires. Therefore
these prior fires cannot be considered other crimes, wrongs or acts
under Montana Rules of Evidence 403 and 404(b). We reverse and
remand this case; in the event of a new trial, the District Court
is to omit these prior fires as other crimes, wrongs or acts
evidence. Because we have found reversible error in this first
issue, we decline to discuss Defendants' second issue.
Reversed and remanded.
We concur: